Citation Nr: 0941318
Decision Date: 10/30/09 Archive Date: 11/09/09
DOCKET NO. 06-19 254 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Whether rating decisions dated in August 1998, October
1998, and October 2000 denying a total disability rating
based on individual unemployability (TDIU), should be revised
on the basis of clear and unmistakable error (CUE).
2. Entitlement to a disability rating higher than 20 percent
for status post arthroscopic surgery of the right knee.
3. Entitlement to a disability rating higher than 20 percent
for status post arthroscopic surgery of the left knee.
4. Entitlement to special monthly compensation (SMC) based
on the need for regular aid and attendance or for being
housebound.
5. Entitlement to automobile and adaptive equipment or
adaptive equipment only.
6. Entitlement to a special home adaption grant.
7. Entitlement to specially adapted housing.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Douglas E. Massey, Counsel
INTRODUCTION
The Veteran served on active duty in the military from
December 1979 to July 1996.
This appeal to the Board of Veterans' Appeals (Board) arose
from rating decisions of the Department of Veterans Affairs
(VA) Regional Office (RO) in St. Petersburg, Florida. In
this decision, the Board will adjudicate the Veteran's claim
that prior rating decisions denying a TDIU should be revised
on the basis of CUE.
The remaining issues involving an increased rating for his
right and left knee disabilities, and entitlement to SMC
based on the need for regular aid and attendance or for being
housebound are addressed in the REMAND portion of the
decision below and are remanded to the RO, via the Appeals
Management Center (AMC), in Washington, DC.
Although not in appellate status, the Board finds that a
remand also is warranted for the Veteran's claims involving
(i) entitlement to automobile and adaptive equipment or
adaptive equipment only, (ii) entitlement to a special home
adaption grant, and (iii) entitlement to specially adapted
housing. The record shows that these claims were denied by
the RO in a March 2006 rating decision, and although the
Veteran responded by submitting a timely notice of
disagreement (NOD) in June 2006, the RO has not yet issued a
statement of the case (SOC) concerning these issues.
Therefore, these claims must be remanded to the RO, via the
AMC, rather than merely referred there. Manlincon v. West,
12 Vet. App. 238 (1999).
FINDING OF FACT
The rating decisions of August 1998, October 1998, and
October 2000 which denied a TDIU were supported by the
evidence then of record and were consistent with VA laws and
regulations then in effect.
CONCLUSION OF LAW
The rating decisions dated in August 1998, October 1998, and
October 2000 that denied a TDIU did not involve CUE. 38
C.F.R. § 3.105 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran has been assigned a schedular 100 percent
disability rating from October 20, 2003. He claims, however,
that prior claims for a TDIU should have been granted from
August 1996, when he first met the schedular prerequisites
for a TDIU. In particular, he believes that the RO committed
CUE in prior rating decisions by failing to grant a TDIU back
to August 1996. After carefully reviewing the evidence of
record, the Board finds no basis to grant his claim.
A brief description of the relevant facts follows. The
Veteran retired from active duty in July 1996 and filed an
initial claim for a TDIU in December 1996. The Veteran
reported that he had completed three years of college and had
prior work experience selling cars and working for an
electrician. He claimed that he last worked in November 1996
and had lost two jobs due to his service-connected
disabilities since retiring from active duty. These
disabilities included the following: arthritis of the lumbar
spine, peptic ulcer disease with gastroesophageal reflux
disease (GERD), status post arthroscopic surgery of the left
knee, arthritis of the right knee, sleep apnea, a right
inguinal hernia repair, an appendectomy scar, hemorrhoids,
and a scar on the left nipple. His total combined rating was
30 percent. 38 C.F.R. § 4.25.
In two rating decisions dated in August and October 1998, the
RO denied the Veteran's claim for a TDIU on the basis that
his service-connected disabilities - rated 30 percent
disabling - did not meet the schedular requirements for a
TDIU, and that there were no exceptional factors or
circumstances which would warrant referral for extra-
schedular consideration. A brief discussion of these rating
decisions is warranted.
The August 1998 rating decision notes that a statement from
Starke Ford Mercury, Inc., reflects that the Veteran had
worked from July 10 to November 18, 1996, as a sales
consultant. This document also notes that he was no longer
working there because of pain in his knees and lower back,
although a medical opinion to confirm this fact was not
associated with this document.
The second rating decision, dated in October 1998, notes that
VA outpatient treatment records showed treatment for
hemorrhoids, sinus problems, bilateral knee pain, ear and
throat pain, right shoulder pain, headaches, a sleep
disorder, prostatitis, and GERD. But there did not appear to
be a medical opinion as to whether the Veteran's service-
connected disabilities precluded him from securing or
maintaining gainful employment. The rating decision further
notes that a statement from Mid State Electric of Ocala,
Inc., reflects that the Veteran had worked there as an
electrical helper for a total of eight days from December 6
to December 17, 1996. The Veteran apparently quit. No
additional medical evidence was provided.
The Veteran made no attempt to appeal either rating decision.
In February 2000, however, he filed another claim for service
connection for a TDIU. He indicated that his most recent job
consisted of working as a lab technician and that he became
too disabled to work in June 1997. He also reported that he
was currently being trained in a vocational rehabilitation
program because nobody would hire him. In an October 2000
rating decision, the RO again denied the Veteran's claim for
a TDIU. In doing so, the RO noted that his combined rating
for his service-connected disabilities was 70 percent. The
basis for the RO's denial was that, while the medical
evidence showed that these disabilities precluded certain
kinds of employment requiring physical exertion, they did not
preclude all kinds of gainful employment consistent with his
education and experience. Again, the Veteran did not attempt
to appeal the October 2000 rating decision.
On October 13, 2003, the Veteran filed another claim for
increased compensation benefits, including a TDIU. In his VA
Form 21-8940 (Application for Increased Compensation Based on
Unemployability), the Veteran reported that he had worked
from August 2001 until May 2003 as a rehabilitation counselor
for U.S. Job Corps. He reported that he had become too
disabled to work as of May 2003 because of his service-
connected disabilities. He also referred to his having
participated in VA's vocational rehabilitation program from
August 1997 until May 2001. Indeed, records from his
vocational rehabilitation program show that he had received a
Bachelor of Science (B.S.) degree in 2001.
In an unrelated matter, the RO issued a January 2004 rating
decision in which it determined that several prior decisions
had been revised because the RO had committed CUE. First,
the RO determined that a February 2000 rating decision
assigning an increased rating from zero to 10 percent for his
right knee disability, effective from January 1999, contained
CUE. The RO determined that this disability should have been
assigned a 20 percent rating, retroactively effective from
August 1, 1996.
Second, the RO determined that the February 2000 rating
decision also contained CUE in assigning an effective date of
January 21, 1999, for the increased rating of 40 percent for
the Veteran's lumbar spine disability. The RO found that the
40 percent rating should also have been granted back to
August 1, 1996.
Third, it was determined that an April 2002 rating decision
contained CUE by assigning an effective date of October 11,
1996, for the Veteran's service-connected hypertension.
Instead, the RO found that the effective date of that award
should have been August 1, 1996.
Fourth, the RO determined that the February 2000 rating
decision which granted an increased rating from 10 percent to
30 percent for sleep apnea, retroactively effective from
January 21, 1999, contained CUE with respect to both the
effective date and the assigned rating. In particular, the
RO assigned an even higher 50 percent rating back to October
7, 1996, for this award.
And lastly, the RO determined that the RO's February 2000
decision to assign a 10 percent rating for the Veteran's
service-connected GERD with history of peptic ulcer,
retroactively effective from August 1, 1996, constituted CUE
because this disability warranted a 50 percent rating since
that date.
Thus, the cumulative effect of these amendments was that the
Veteran had a combined total rating of 80 percent from August
1, 1996, and a combined total rating of 90 percent from
October 7, 1996. He also had a total rating of 100 percent
for a brief period from May 18, 2001, until August 1, 2001,
but this was only a temporary rating based on knee surgery
and the need for convalescence under 38 C.F.R. § 4.30.
Then, in an August 2004 rating decision, the RO assigned a
higher rating of 70 percent for his service-connected PTSD,
retroactively effective from October 2003. Since this
brought his combined total schedular rating to 100 percent
from October 2003, the RO properly determined that his
October 2003 claim for a TDIU became moot. Green v. West, 11
Vet. App. 472 (1998) (citing Vettese v. Brown, 7 Vet. App.
31, 34-35 (1994) (a claim for TDIU presupposes that the
rating for the condition is less than 100 percent) and
Holland v. Brown, 6 Vet. App. 443 (1994) (a 100 percent
schedular rating means that a Veteran is totally disabled)).
The Veteran now claims that he is entitled to a 100 percent
rating back to August 1996, because he met the schedular
prerequisites for a TDIU since that date. In other words, he
is seeking a TDIU from August 1996 until October 2003, when
he met the schedular requirements for a 100 percent rating.
His primary argument is that the RO committed CUE in prior
rating decisions by failing to assign a TDIU back to August
1996.
The only decisions addressing claims for a TDIU include the
rating decisions dated in August 1998, October 1998, and
October 2000. Since the Veteran did not appeal these
decisions after receiving proper notice, they became final
and binding on him based on the evidence then of record. 38
U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.200, 20.302,
20.1103. Consequently, those decisions may only be revised
upon a collateral attack showing that they contained CUE.
See 38 U.S.C.A. §§ 5108, 5109A (West 2002); 38 C.F.R. §§
3.104, 3.105, 3.156(a) (2009); Manio v. Derwinski, 1 Vet.
App. 140 (1991).
Pursuant to 38 C.F.R. § 3.104(a), "[a] decision of a duly
constituted rating agency . . . shall be final and binding .
. . based on evidence on file at the time and shall not be
subject to revision on the same factual basis." See also 38
U.S.C.A. § 5108. An exception to this rule is when the VA has
made a clear and unmistakable error in its decision pursuant
to 38 C.F.R. § 3.105. See also 38 U.S.C.A. § 210(c), 7103
(West 2002).
Under 38 C.F.R. § 3.105(a), a prior decision must be reversed
or amended "[w]here evidence establishes [CUE]." The Court
defines a determination of CUE in a prior adjudication to
mean that: (1) "[e]ither the correct facts, as they were
known at the time, were not before the adjudicator or the
statutory or regulatory provisions extant at the time were
incorrectly applied," (2) the error must be "undebatable" and
of the sort "which, had it not been made, would have
manifestly changed the outcome at the time it was made," and
(3) a determination that there was [CUE] must be based on the
record and the law that existed at the time of the prior ...
decision." Russell v. Principi, 3 Vet. App. 310, 313-14
(1992) (emphasis added).
"In order for there to be a valid claim of [CUE], . . . [t]he
claimant, in short, must assert more than a disagreement as
to how the facts were weighed or evaluated." Id.; see also
Eddy v. Brown, 9 Vet. App. 52, 54 (1996). An asserted
failure to evaluate and interpret correctly the evidence is
not clear and unmistakable error. See Id.; Damrel v. Brown,
6 Vet. App. 242, 245-246 (1994). "[I]t is a very specific
and rare kind of 'error.' It is the kind of error, of fact
or of law, that when called to the attention of later
reviewers compels the conclusion, to which reasonable minds
could not differ, that the result would have been manifestly
different but for the error. Thus, even where the premise of
error is accepted, if it is not absolutely clear that a
different result would have ensued, the error complained of
cannot be, ipso facto, [CUE]." Fugo v. Brown, 6 Vet. App.
40, 43-44 (1993) (emphasis in the original).
The record to be reviewed for CUE must be based on the record
and the law that existed at the time of the rating decisions
being challenged. 38 C.F.R. § 3.105. The Board notes that
the law and regulations concerning an award of a TDIU have
not changed since he initially filed his claim in December
1996. A TDIU is warranted based upon a showing that a
Veteran is unable to secure or follow a substantially gainful
occupation due solely to impairment resulting from his
service-connected disabilities. 38 U.S.C.A. § 1155; 38
C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to
his level of education, special training, and previous work
experience in making this determination, but not to his age
or the impairment caused by any disabilities that are not
service connected. 38 C.F.R. §§ 3.341, 4.16, 4.19.
To qualify for a total rating for compensation purposes, the
evidence must show (1) a single disability rated as 100
percent disabling; or (2) that the Veteran is unable to
secure or follow a substantially gainful occupation as a
result of his service-connected disabilities, provided there
is one disability ratable at 60 percent or more, or, if more
than one disability, at least one disability ratable at 40
percent or more and a combined disability rating of 70
percent. Id.
Even if the ratings for a Veteran's disabilities fail to meet
the first two objective bases upon which a permanent and
total disability rating for compensation purposes may be
established, his disabilities may be considered alternatively
under subjective criteria. If he is unemployable by reason
of his disabilities, occupational background, and other
related factors, an extra-schedular total rating may also be
assigned on the basis of a showing of unemployability, alone.
See 38 C.F.R. § 4.16(b). See also 38 C.F.R. §
3.321(b)(1).
After carefully reviewing the evidence of records, the Board
finds that none of the prior rating decisions denying a TDIU
contain CUE. The Veteran is correct that he has been
retroactively found to have met the schedular prerequisites
for a TDIU as of August 1996. Based on the January 2004
rating decision, which found CUE in prior rating decisions,
the Veteran had at least one disability ratable at 40 percent
or more and a combined disability rating of 70 percent since
August 1996, thereby satisfying the schedular prerequisites
for assignment of a TDIU. But this finding alone does not
entitle the Veteran to a TDIU based on CUE. He must still
prove that it was undebatable at the time of prior rating
decisions of August 1998, October 1998, and October 2000 that
his service-connected disabilities precluded him from
securing or obtaining gainful employment. Unfortunately, the
Veteran has not met this significant burden.
The Board notes that there was simply no medical evidence
concerning the Veteran's employability at the time of the
August and October 1998 rating decisions. The only medical
evidence at that time included some VA outpatient treatment
records, none of which included a medical opinion addressing
the Veteran's ability to secure and maintain gainful
employment in light of his service-connected disabilities.
And since the RO did not believe that Veteran met the
schedular prerequisites for a TDIU, he was not afforded a VA
examination at that time of those decisions. Such an
examination is generally required when a Veteran has met the
schedular prerequisites for a TDIU. Friscia v. Brown, 7 Vet.
App. 294, 297 (1994) (holding that the Board may not reject a
claim for a TDIU without producing evidence, as distinguished
from mere conjecture, that the Veteran can perform work that
would produce sufficient income to be other than marginal.)
The Board emphasizes, however, that the failure to fulfill
the duty to assist cannot constitute CUE. Crippen v. Brown,
9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App.
377 (1994).
The Board has considered the statement from Starke Ford
Mercury, Inc., - showing that he had worked there from July
10, 1996, to November 18, 1996, - which notes that he left
that job because of pain in his knees and lower back. This
statement, however, was not provided by a medical
professional. Thus, while this document may suggest the
Veteran was unable to work because of his service-connected
disabilities involving his lumbar spine and knees, since this
opinion was not offered by a medical professional, it does
not provide undebatable evidence that he was unable to secure
or maintain gainful employment as a result of his service-
connected disabilities. Indeed, the Court has held that
merely disagreeing with how the RO evaluated the evidence in
a prior final decision can never constitute CUE. See Damrel,
6 Vet. App. at 245-246 (holding that an asserted failure to
evaluate and interpret correctly the evidence is not clear
and unmistakable error); see also Fugo, 6 Vet. App. at 43-44
(holding that, "even where the premise of error is accepted,
if it is not absolutely clear that a different result would
have ensued, the error complained of cannot be, ipso facto,
[CUE].") In sum, neither the August 1998 nor the October
1998 rating decisions contains CUE.
The Board also finds that the October 2000 rating decision
does not contain CUE for failing to award a TDIU. The Board
notes that various medical opinions were received from VA and
the Social Security Administration (SSA) concerning the
Veteran's ability to work in light of his many disabilities.
These medical opinions suggested that the Veteran's service-
connected disabilities prevented him from being able to work
at jobs which required heaving lifting, bending, or any type
of physical exertion. This was consistent with a December
1999 letter from the U.S. Postal Service, which notified the
Veteran that he was found to be medically unsuitable for
permanent full-time employment as a distribution clerk due to
his numerous disabilities.
None of these opinions, however, addressed the issue of
whether the Veteran would be able to perform sedentary work
in light of his service-connected disabilities. Indeed, an
August 2000 VA psychiatric examination report noted that the
Veteran was stable enough to participate in a program of
vocational rehabilitation, thereby suggesting that he was
still able to work. Indeed, the record shows that he
attended a vocational rehabilitation program from 1997 until
2001, during which time he earned his B.S. degree, and was
then able to obtain a full time job as a rehabilitation
counselor with U.S. Job Corps from August 2001 until May
2003. The fact that the Veteran was able to earn his B.S.
degree during this period, and had prior work experience in
sedentary jobs, clearly precludes a finding of CUE in the
October 2000 rating decision that denied a TDIU.
Accordingly, the Board finds that the rating decisions dated
in August 1998, October 1998, and October 2000 were in
accordance with acceptable rating judgment in denying his
claim for a TDIU. Although the RO may not have provided as
thorough an explanation as it could have in the rating
decisions of August and October 1998, clearly, it was not
shown that the evidence compelled a finding that the
Veteran's service-connected disabilities rendered him unable
to secure or maintain gainful employment. See Bierman v.
Brown, 6 Vet. App. 125, 131 (1994); Suttmann v. Brown, 5 Vet.
App. 127, 133-34 (1993); Pernorio v. Derwinski, 2 Vet. App.
625, 629 (1992).
It is worth mentioning that the Board need not consider
whether the Veteran is entitled to TDIU prior to October 2003
under the law and regulations governing effective dates
(38 U.S.C.A. § 5110; 38 C.F.R. § 3.400), because the
Veteran's claim was based on allegations that the RO had
committed CUE in failing to assign a TDIU in prior rating
decisions.
It is also worth mentioning that VA's duties to notify and
assist claimants under the Veterans Claims Assistance Act of
2000 (VCAA) do not apply to claims alleging CUE. See Parker
v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15
Vet. App. 165, 179 (2001) (en banc); see also Dela Cruz v.
Principi, 15 Vet. App. 143 (2001) (holding that the VCAA does
not affect matters on appeal when the issue is limited to
statutory interpretation).
ORDER
The claim that there was clear and unmistakable error in the
final rating decisions of August 1998, October 1998, and
October 2000, which denied entitlement to TDIU, is denied.
REMAND
The Board finds that additional development is needed before
it can adjudicate the Veteran's claims for an increased
rating for his right and left knee disabilities, and
entitlement to SMC based on the need for regular aid and
attendance or for being housebound. A remand is also
required to address a procedural defect in his claims
involving entitlement to automobile and adaptive equipment or
adaptive equipment only, entitlement to a special home
adaption grant, and entitlement to specially adapted housing.
The Board finds that the Veteran should be afforded a VA
examination to determine the nature and severity of his right
and left knee disabilities. These disabilities were last
examined for VA compensation purposes nearly five years ago,
in January 2005. See Caffrey v. Brown, 6 Vet. App. 377, 381
(1994) (the Court determined the Board should have ordered a
contemporaneous examination of the Veteran because a 23-month
old exam was too remote in time to adequately support the
decision in an appeal for an increased rating). The record
also shows that the Veteran had surgery on his left knee in
April 2007, after his most recent VA examination. A VA
examination is therefore needed to assess the current
severity of the Veteran's right and left knee disabilities.
The Veteran contends that he is entitled to SMC based on the
need for regular aid and attendance of another person or by
reason of being housebound. He is currently service-
connected for PTSD (rated 70 percent), sleep apnea (rated 50
percent), degenerative changes of the lumbar spine (rated 40
percent), GERD with history of peptic ulcer (rated 30
percent), status post arthroscopic surgery of the right knee
(rated 20 percent), status post arthroscopic surgery of the
left knee (rated 20 percent), degenerative changes of the
cervical spine (rated 20 percent), radiculopathy of the left
arm (rated 10 percent), reactive air way disease (zero
percent), hemorrhoids (zero percent), status post inguinal
hernia repair (zero percent), status post appendectomy scar
(zero percent), and a scar on the left nipple (zero percent).
However, the Veteran has not been afforded a recent VA
examination to determine whether he is entitled to SMC due to
these disabilities. Therefore, the Board finds that a remand
for a VA examination and clarifying medical opinion is
required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.326,
3.350(b), 3.352(a) (2008); Buchanan v. Nicholson, 451 F. 3d
1331 (Fed. Cir. 2006).
As briefly mentioned in the Introduction, a March 2006 rating
decision denied the Veteran's claims involving (i)
entitlement to automobile and adaptive equipment or adaptive
equipment only, (ii) entitlement to a special home adaption
grant, and (iii) entitlement to specially adapted housing.
In response, the Veteran filed a timely NOD in June 2006
concerning each of these claims. The Veteran, however, was
never issued an SOC concerning these issues in response to
his NOD. Instead, the RO issued another rating decision in
February 2008 addressing these claims. In light of this
procedural defect, a remand is required so that the RO may
issue an SOC. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2008);
see also Manlincon, 12 Vet. App. at 238; Godfrey v. Brown, 7
Vet. App. 398, 408-410 (1995).
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for an
appropriate VA examination to determine
the nature and severity of his service-
connected right and left knee
disabilities. The examination should
include X-rays and a complete test of the
range of motion of both knees, documented
in degrees. The claims folder should be
made available to and reviewed by the
examiner in conjunction with the
examination. The examiner should also
answer the following questions concerning
each knee: (a) whether the knee exhibits
weakened movement, excess fatigability,
incoordination, or pain on movement (if
feasible, these determinations should be
expressed in terms of the degree of
additional loss of motion due to these
symptoms); (b) whether pain significantly
limits functional ability during flare-ups
or when the joint is used repeatedly over
a period of time (this determination
should also, if feasible, be portrayed in
terms of the degree of additional range of
motion loss due to pain on use or during
flare-ups); and (c) to what degree, if
any, the Veteran experiences recurrent
subluxation or lateral instability of
knee. A complete rationale should be
given for all opinions and conclusions
expressed.
2. Schedule the Veteran for an
appropriate VA examination(s) to determine
whether he is in need of regular aid and
attendance or is housebound due to his
service-connected disabilities, including
PTSD, sleep apnea, degenerative changes of
the lumbar spine, GERD with history of
peptic ulcer, status post arthroscopic
surgery of the right and left knees,
degenerative changes of the cervical
spine, radiculopathy of the left arm,
reactive air way disease, hemorrhoids,
status post inguinal hernia repair, status
post appendectomy scar, and a scar on the
left nipple.
Any and all studies, tests, and
evaluations deemed necessary by the
examiner should be performed. The claims
folder should be made available to and
reviewed by the examiner in conjunction
with the examination. The examiner is
requested to review all pertinent records
associated with the claims file and to
comment on whether the Veteran requires
regular aid and attendance or is
housebound by reason of his service-
connected disabilities.
In particular, the examiner should
consider whether the Veteran has the
inability to dress or undress himself, or
to keep himself ordinarily clean and
presentable; frequent need of adjustment
of any special prosthetic or orthopedic
appliances which by reason of the
particular disability cannot be done
without aid; inability to feed himself
through loss of coordination of upper
extremities or through extreme weakness;
inability to attend to the wants of
nature; or incapacity, physical or mental,
which requires care or assistance on a
regular basis to protect the Veteran from
hazards or dangers incident to his daily
environment.
The examiner should also indicate whether
the Veteran is substantially confined to
his house or immediate premises by reason
of any service-connected disabilities
reasonably certain to remain throughout
his lifetime. A complete rationale should
be given for all opinions and conclusions
expressed.
3. Then readjudicate the claims for
increased ratings for his right and left
knee disabilities, and entitlement to SMC
based on the need for regular aid and
attendance or for being housebound, in
light of the additional evidence. If
these claims are not granted to the
Veteran's satisfaction, send him and his
representative a Supplemental Statement of
the Case and give them an opportunity to
respond to it before returning the record
to the Board for further appellate review.
4. Issue the Veteran an SOC addressing
the claims involving (i) entitlement to an
automobile and adaptive equipment or
adaptive equipment only, (ii) entitlement
to a special home adaption grant, and
(iii) entitlement to specially adapted
housing. The Veteran should be given an
opportunity to perfect an appeal by
submitting a timely substantive appeal in
response thereto. The RO should advise
the Veteran that the claims file will not
be returned to the Board for appellate
consideration of this issue following the
issuance of the statement of the case
unless he perfects his appeal.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs